People v. Ciccone

• Decision Date: 08 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony CICCONE, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08842

90 A.D.3d 1141

934 N.Y.S.2d 563

The PEOPLE of the State of New York, Respondent,

v.Anthony CICCONE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 8, 2011.

Carl J. Silverstein, Monticello, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: SPAIN, J.P., ROSE, KAVANAGH, STEIN and GARRY, JJ.

KAVANAGH, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered September 10, 2009, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree (two counts) and endangering the welfare of a child.

In May 2008, a four-month-old child was brought to the emergency room of a local hospital because he had been bleeding profusely from his nose and mouth and had been unable to breath. An investigation subsequently established that the child had been injured when a baby wipe had become lodged in the child's mouth while being cared for by defendant at his apartment. Because the injuries appeared to be life-threatening, the child was transferred to the pediatric intensive care unit of another hospital, where numerous bruises were noted on the infant's face, mouth and head. In addition, the child was found to have a significant laceration to his palate and acute fractures on his right and left tibia and right thigh bone.¹

When first questioned about the child's injuries, defendant stated that he was caring for him while the mother was asleep in the apartment. He recalled briefly leaving the child unattended to go to the kitchen to get him a bottle. While in the kitchen, defendant heard a strange sound and, upon returning to the bedroom, found the child choking on a baby wipe that had become lodged in his mouth. Defendant stated that he immediately woke the mother and told her to call 911. At that point, defendant recalled trying to remove the wipe from the child's mouth, but inadvertently forcing it so that it became lodged in the infant's throat. Defendant stated that he was eventually able to remove the wipe from the child's mouth, and surmised that, in the process, apparently scratched the infant's palate with his finger, because the child began to bleed profusely from the mouth and nose. Only after being informed that fractures had been found in an examination of the child's legs did defendant tell medical personnel that he had slipped and fallen twice while he was holding the child and attempting to remove the baby wipe from his mouth.

Because the injuries noted on the child could not have been self-inflicted and, according to medical authorities, were consistent with those found on a child who had been physically abused, defendant was arrested and charged with assault. The matter was subsequently presented to a grand jury and an indictment was returned charging defendant with assault in the first degree, assault in the second degree (three counts) and endangering the welfare of a child. After a jury trial, defendant was convicted of assault in the first degree, two counts of assault in the second degree and endangering the welfare of a child. He was subsequently sentenced to eight years in prison for his conviction of assault in the first degree and five years in prison for each conviction of assault in the second degree, all to be served consecutively, ² plus periods of postrelease supervision. Defendant now appeals.

Defendant initially contends that these convictions were not supported by legally sufficient evidence. As relevant here, to be convicted of assault in the first degree, it had to be proven that defendant used a dangerous instrument on the child, intending to and actually causing the child serious physical injury ( see Penal Law § 120.10[1] ).³ In that regard, the People presented evidence not only that the child had been seriously injured, but also that the wipe as allegedly used by defendant on the child was capable of inflicting such injury and, as such, constituted a dangerous instrument. ⁴ As for defendant's conviction for assault in the second degree, the People were required to prove that defendant intentionally caused physical injury to a child less than seven years old ( see Penal Law § 120.05[9] ). Finally, to establish that defendant endangered the welfare of the child, competent evidence had to be presented establishing that defendant “knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child” ( Penal Law § 260.10[1] ).

In challenging the legal sufficiency of these convictions, defendant contends that no direct evidence exists establishing that he intended to injure the child or that he was responsible for forcing the baby wipe into the child's mouth. Initially, we note that in determining whether defendant's convictions were supported by legally sufficient evidence, we must “view the evidence in the light most favorable to the People and will not disturb the verdict if the evidence demonstrates a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury” ( People v. Marshall, 65 A.D.3d 710, 711, 884 N.Y.S.2d 494 [2009], lv. denied 13 N.Y.3d 940, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010] [internal citations omitted]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Lewis, 83 A.D.3d 1206, 1207, 920 N.Y.S.2d 846 [2011], lv. denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ). This standard of appellate review applies to all criminal convictions, including those that are based entirely on circumstantial evidence ( see People v. Ficarrota, 91 N.Y.2d 244, 248–249, 668 N.Y.S.2d 993, 691 N.E.2d 1017 [1997]; People v. Harris, 88 A.D.3d 83, 86, 928 N.Y.S.2d 114 [2011], lv. granted 17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809 [2011] ).

Here, the People presented competent evidence establishing that when this child sustained these injuries, defendant was charged with his care and was the only person who could have been responsible if these injuries were intentionally inflicted. Moreover, the injuries sustained by this child were substantial and serious and, as previously noted, could not have been self-inflicted by a four-month-old child. In addition, two physicians testified, one of whom is a pediatric radiologist, that the fractures found on the child were not the result of accidental or inadvertent contact but, instead, were caused, in their opinion, by the child being battered, assaulted and physically abused. This testimony stood in stark contrast to defendant's belated admission that he had fallen twice while holding the child when he was trying to remove the wipe from the child's mouth. Simply stated, this evidence, when viewed as an integrated whole, provided a rational as well as a legal basis for the conclusions reached by the jury as embodied by its verdict ( see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Wright, 81 A.D.3d 1161, 1163, 918 N.Y.S.2d 598 [2011], lv. denied 17 N.Y.3d 803, 929 N.Y.S.2d 112, 952 N.E.2d 1107 [2011] ). In that same vein, we also conclude that each conviction is supported by the weight of the credible evidence presented at trial ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Gratton, 51 A.D.3d 1219, 1220–1221, 857 N.Y.S.2d 363 [2008], lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008] ).

Defendant also challenges the People's use of rebuttal witnesses to testify to his character and counter his claim that he would never intentionally harm a child. County Court should not have permitted any of the character witnesses, including those called by defendant, to testify to specific incidents of his conduct on this issue and erred in allowing one witness to testify that defendant used drugs with her in the presence of her child. However, much of the character evidence presented by the People at trial represented an appropriate response to defendant's evidence of his good character and, as offered, tended “to negate the trait in issue” ( People v. Rojas, 97 N.Y.2d 32, 38, 735 N.Y.S.2d 470, 760 N.E.2d 1265 [2001]; see People v. Nicosia, 18 A.D.3d 673, 673, 795 N.Y.S.2d 335 [2005]; People v. Morehouse, 5 A.D.3d 925, 928, 774 N.Y.S.2d 100 [2004], lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004] ). Also, any error that County Court may have committed in regard to this testimony was harmless, especially when considered in light of its instruction to the jury that this evidence “was offered solely for [the jury's] consideration on the question of the reputation for non-violence and his relationship with children” and that “[the...